State ex rel. S.F.F. v. S.C.G.

• Decision Date: 03 July 2018
• Docket Number: No. ED 105205,ED 105205
• Citation: 554 S.W.3d 512
• Parties: STATE of Missouri, EX REL., S.F.F. Minor by Her Next Friend, S.L.B. n/k/a S.L.F. and S.L.F., Individually, Appellants, v. S.C.G., Respondent.
• Court: Missouri Court of Appeals

554 S.W.3d 512

STATE of Missouri, EX REL., S.F.F. Minor by Her Next Friend, S.L.B. n/k/a S.L.F. and S.L.F., Individually, Appellants,

v.S.C.G., Respondent.

No. ED 105205

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: July 3, 2018

FOR APPELLANT: Matthew J. Gould, P.O. Box 118, Hillsboro, MO 63050.

For Respondent: Alan E. Freed, 165 N. Meramec Avenue, Suite 110, St. Louis, Missouri 63105.

ROY L. RICHTER, Judge

S.L.B., now known as S.L.F. ("Mother"), appeals from a judgment of modification entered by the trial court, finding, inter alia , that there have been changes in circumstances so substantial and continuing as to make the terms of the judgment of paternity not in the best interests of the minor child, S.F.F. ("Daughter"), and modified the judgment of paternity by purporting to adopt Respondent's proposed parenting plan and award S.C.G. ("Father") sole legal custody of Daughter. We reverse and remand.

I. Background

Daughter, born in October 2011, is the daughter of Mother and Father. On September 26, 2013, a Judgment and Decree of Paternity was entered upon agreement without a trial, inter alia , awarding Mother sole legal and sole physical custody of Daughter; awarding Father alternate weekends with Daughter following a nine-month graduated visitation schedule; and ordering Father to pay $450 per month in child support and provide health insurance for the child.

Father filed a Motion to Modify Judgment and Decree of Paternity on August 5, 2015, alleging changed circumstances such as Mother's refusal to honor Father's custody rights and allowing Daughter to decide whether she will go with Father. Father requested joint legal and joint physical custody and changing the child's surname to Father's, which he alleged were requests made in the child's best interest.

A guardian ad litem ("GAL") entered her appearance in the case on October 30, 2015. On November 6, 2015, Mother filed a Counter-Motion to Modify Judgment and Decree of Paternity, arguing that Father's current visitation endangers Daughter's physical health and/or impaired her emotional development based on allegations of sexual abuse. Mother filed a Verified Motion for Temporary Restraining Order with Notice and Notice on Hearing for Application for Preliminary Injunction on November 17, 2015. Although Father filed a response, the parties entered a Consent Temporary Restraining Order on November 18, 2015, to supersede the existing custody orders: Father was ordered to have therapeutic visits with Daughter of up to two hours per week through COMTREA;¹ the parties were ordered to contact COMTREA to arrange their orientations; the charges for paid visits were to be paid initially by Father and could be reallocated later; the trial setting of December 17, 2015, was vacated and the case was set on the January 11, 2016 call docket; and Mother was ordered to post bond in the amount of $25. An Amended Consent Temporary Restraining Order ("TRO") provided that Father's therapeutic visits with Daughter would be extended to two hours per week supervised and transferred from SAEP² to the PAVERS³ program, which is grant funded.

On May 27, 2016, Father filed an Amended Motion to Modify Judgment and Decree of Paternity, requesting sole legal and sole physical custody of Daughter, alleging that "shortly after [Father] was awarded overnight visitation, [Mother] contacted law enforcement indicating that [Father] had abused his daughter;" "[t]hat [Mother] made allegations of a sexual nature against [Father];" "[t]hat said allegations have been unsubstantiated by [the Division of Family Services] after interview, [Child Advocacy Center], and investigation." Father added in his amended motion that within one week of the allegations being unsubstantiated, a new hotline call was made to the State, amending the facts of the original allegation to include more significant abuse, despite Daughter's clear description of the alleged abuse at the time in the Child Advocacy Center ("CAC") and her repeated description of the event to her counselor. The motion also alleged that in December 2015, Daughter specifically told her therapist that Mother told her to say she did not want to see her dad, that Mother has caused Daughter to miss supervised visits with Father, that she alienates Daughter from Father, and she has no intent to co-parent with Father. Furthermore, Father alleged that Mother has a history of mental health problems, substance abuse, and lost custody of another child to that child's father, and that Father even observed her drinking (or impaired) in the presence of Daughter.

On June 15, 2016, Father filed a Motion for Temporary Restraining Order and Application for Preliminary Injunction, with similar allegations as the Amended Motion to Modify Judgment and Decree of Paternity, adding that Mother's second set of allegations were unsubstantiated by the Division of Family Services, and that Mother then called the State hotline a third time. Father alleged that Daughter was gradually becoming more withdrawn and less affectionate toward Father during his visits, and immediate and irreparable harm could come to Daughter if Mother's alienation did not stop.

On June 27, 2016, the parties and GAL entered into a Consent Order Amending Temporary Restraining Order, which modified the TRO in the following ways:

1) Father was given unsupervised visitation on every weekend in July for the specified 24-hour period of time; the TRO hearing and hearing on Preliminary Injunction was set for July 27, 2016 at 1 p.m.

2) Exchanges were to take place at the Pevely Police Station.

3) For all transfers, each parent would remain in their car and have no interaction. Another person of their choosing should accompany them and these persons were to exchange Daughter inside the station.

4) For the first two visits, no telephone contact between Mother and Daughter would occur. Thereafter both parents could call to speak with Daughter once each day that she was with the other parent.

5) The parties were to sign up for talkingparents.com within three days and utilize that site to communicate unless there was an emergency.

6) At Father's request, he would also continue his two-hour visits on Wednesdays through the PAVERS program at COMTREA.

On July 27, 2016, Mother, Father, and the GAL entered into a consent order and the trial court further agreed to amend the TRO so that Father would have custody of Daughter every weekend, from Friday evening until Sunday evening except during his National Guard weekends, and have two-hour PAVERS visits every other Wednesday, alternating with overnight visits every other Wednesday evening until Thursday morning.

The matter was tried on September 27 and 29, 2016, at which time evidence was adduced from both parties.

Mother and Father were given until October 28, 2016, to submit their proposed findings of fact. Father filed his on October 14, 2016, and Mother filed hers on October 26, 2016. The trial court entered the judgment on November 14, 2016, simply signing Father's Proposed Judgment of Modification of Paternity, Findings of Fact and Conclusions of Law, and making two minor corrections in the first paragraph of the document (hereinafter, the "Judgment"). In the Judgment, the court finds "there have been changes in circumstances so substantial and continuing as to make the terms of the [September 26, 2013] Judgment not in the best interests of the child, and modification of the order is in the best interests of the child." The trial court found that Father's proposed parenting plan, Exhibit 5, is in the best interests of the child, in addition to Mother having limited visitation and Father having sole legal custody "due to Mother's continued alienating behaviors, and her untreated mental health diagnoses."

Mother filed a motion for new trial on December 9, 2016, which was denied on January 5, 2017. Mother filed her Notice of Appeal on February 11, 2017. This appeal follows.⁴

II. Discussion

Mother alleges six points on appeal. In her first allegation of error, Mother contends the trial court erred in finding that it is in Daughter's best interests to have limited visitation with Mother because there is no substantial evidence to support the finding and it is against the weight of the evidence in that the finding was inconsistent with the evidence, including the evidence showing that Mother did not alienate Daughter from Father, or at least stopped alienating to the extent she accidentally did by way of Daughter picking up on her anxiety, and that the drastic reduction in time that Daughter now has with Mother is contrary to the recommendation of the GAL who recommended a modified 2-2-3 schedule so that Daughter would never be away from Mother for more than three days at a time because of the very strong bond between the two.

Second, Mother alleges the trial court erred in finding that it is in Daughter's best interests to have limited visitation with Mother because the court erroneously applied the law in that the court was required to, but did not, consider the statutory factors of Section 452.375.2 (RSMo. Cum. Supp. 2015),⁵ and was also required to, but did not, consider the public policy stated in Section 452.375.4, and since the Judgment amounts to misapplication of the factors specified in Section 452.375.2.

Third, Mother alleges the trial court erred in finding that it is in Daughter's best interests to have limited visitation with Mother because the court erroneously applied the law in that the court never modified Mother's award of sole physical custody from the original judgment, but the purported parenting plan only allocated Mother 11 percent of the total parenting time in the typical two-week custody schedule.

Fourth, Mother contends the trial court erred in finding that it is in Daughter's best interests to have limited visitation with Mother because the court erroneously applied the law in that the court, in determining custody in accordance with the...